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8 Things You Need to Know When Drafting Your Will

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What is a Will?

A will is a legal document that allows you to:

  • appoint a guardian for minor children and/or dependent adults upon your death.

  • appoint an executor to manage your estate upon your death.

  • state to whom, how, and when you want your assets to be distributed when you die.

  • disinherit someone who may otherwise be entitled to inherit your assets under the state’s laws should you die without a will.

What if I Die Without a Will?

If you die without a will, the state’s laws of intestacy govern what happens to your minor children and your estate. Typically, a family member will petition the court to be appointed guardian of minor children and executor of the estate. The court will appoint an executor to facilitate the management of the estate and a guardian of the minor children. Assets are distributed in accordance with the laws of intestacy.

What is Probate?

Probate is the legal process of appointing an executor to manage your estate after your death. Once the executor is appointed, he/she may begin the administration of the estate. Each state has a statutory timeframe and process in which the executor must notify creditors, collect, and distribute the assets

The probate process can be as short as a few months but may last years and can be very expensive. This is especially true if there is no valid will or the will is contested. The probate fees are paid from the decedent’s estate and can exhaust the estate’s assets.

Asset Inventory

One of the initial steps in creating a will, is taking inventory of your assets to include, but not limited to, investments, real estate, retirement accounts, bank accounts, insurance policies, and personal property. Provide your attorney with copies of the documentation as well as any previously drafted estate planning documents.

Beneficiary Designations

Beneficiary designations on insurance policies, retirement accounts, and annuities supersede the terms of the will and generally, are not subject to probate.

Legal Ownership of Assets

The manner in which you own assets affects your right to bequeath them to your heirs. Legal ownership supersedes your will. A will only controls what you own in your name at the time of your death. The interest in assets jointly owned with rights to survivorship is immediately transferred to the surviving co-owner(s) upon the death. The interest in assets owned by tenants in common is transferred to the estate upon the decedent’s death. Therefore, it is important to understand how assets are titled.

Appointing an Executor

Depending on the complexity of the estate, the responsibilities of the executor may be complex and time consuming. Therefore, it is important to appoint someone that is willing and has the time and ability to carry out the responsibilities.

Do It Yourself Wills

There are many websites that offer Do It Yourself templates with the promise of saving time and money. The truth is, doing so will likely cost more time, money and emotional distress once you die. Generally, DIY wills are not state specific and therefore, may not be valid will. Dying with an invalid will is the same as dying without a will. The laws vary from state to state regarding the requirements for executing a will and who may or may not act as a witness and sign the will. Improper execution of a will may invalidate the entire will or prevent the beneficiary from receiving benefits. Further, DIY wills have an increased likelihood of being contested which extends the probate process and increases the costs. A will clearly drafted and executed by a licensed attorney  is the best defense against potential litigation.


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